[2024] KEELC 3401 (KLR)
The court found that the plaintiff had established a prima facie case by producing a certificate of lease to the suit property, demonstrating lawful ownership. The defendants, having been served, failed to file any response or opposition to the application. Applying the principles in Giella v Cassman Brown and...
Source-derived case information.
- Citation
- [2024] KEELC 3401 (KLR)
- Parties
- Plaintiff: Jane Wambui Moko; Defendant: Patrick Kariuki Mwithiga; Defendant: George Mwangi Wakangu; Defendant: Herman Njuguna Wageche; Defendant: Monross Hardware Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E216 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Injunction Application
- Outcome
- Application allowed as drawn, restraining orders granted for one year.
- Judges
- LN Mbugua
- Legal Topics
- Injunctive Relief, Trespass, Ownership Disputes, Possession, Demolition Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wambui Moko
Plaintiff
Patrick Kariuki Mwithiga
Defendant
George Mwangi Wakangu
Defendant
Herman Njuguna Wageche
Defendant
Monross Hardware Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Injunction Application
Legal Issues
- 1 Whether the plaintiff has established a prima facie case to warrant the grant of interlocutory injunctive orders.
- 2 Whether the plaintiff is entitled to restraining orders against the defendants to prevent interference with her occupation and enjoyment of the suit property.
Ratio Decidendi
The court found that the plaintiff had established a prima facie case by producing a certificate of lease to the suit property, demonstrating lawful ownership. The defendants, having been served, failed to file any response or opposition to the application. Applying the principles in Giella v Cassman Brown and Nguruman Limited v Jan Bonde Nielsen, the court determined that, in the absence of opposition and with evidence of ownership, the plaintiff was entitled to the injunctive relief sought. The court therefore granted the restraining orders as prayed, but limited their duration to one year.
Court Disposition
Application allowed as drawn, restraining orders granted for one year.
Orders
- An order is issued restraining the defendants or their agents from forcefully entering, trespassing, accessing, demolishing, constructing, harassing, threatening or interfering with the plaintiff's peaceful enjoyment and occupation of LR No. Nairobi/Block 105/2042 for one year.
- The Officer in Charge of Ruai Police Station to assist in supervision and enforcement of the order.
Full Case Text
Judgment text and source record
26 paragraphs
Moko v Mwithiga & 3 others (Environment & Land Case E216 of 2023) [2024] KEELC 3401 (KLR) (24 April 2024) (Ruling)
Neutral citation: [2024] KEELC 3401 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E216 of 2023
LN Mbugua, J
April 24, 2024
Between
Jane Wambui Moko
Plaintiff
and
Patrick Kariuki Mwithiga
1st Defendant
George Mwangi Wakangu
2nd Defendant
Herman Njuguna Wageche
3rd Defendant
Monross Hardware Limited
4th Defendant
Ruling
1. Before me is the Plaintiff’s Notice of Motion dated 19. 12. 2023 filed contemporaneously with the plaint, where the plaintiff is seeking orders that;a.SPENTb.Pending the inter-partes hearing and determination of this application, an order be issued restraining the Defendant/Respondents herein or their agents, servants, employees and or any person whomsoever acting under their instructions, from forcefully entering, trespassing, accessing, demolishing, putting up structures, building, constructing, harassing, threatening or interfering with the Plaintiff’s/Applicant’s peaceful enjoyment and occupation of LR No. Nairobi/Block 105/2042 and that the Officer in Charge of Ruai Police Station assist in supervision and enforcement of the order herein.c.Pending the hearing and determination of this suit, an order be and is hereby issued restraining the Respondents from demolishing the property erected in LR No. Nairobi/Block 105/2024 and restraining the Defendants/Respondents or their agents, servants, employees and or any person whomsoever acting under their instructions, from forcefully entering, trespassing, accessing, demolishing, putting up structures, building, constructing, harassing, threatening or interfering with the Plaintiff/Applicants’ peaceful enjoyment and occupation of LR No. Nairobi/Block 105/2042 and that the Officer in Charge of Ruai Police Station assist in supervision and enforcement of the order herein.d.The Defendant/Respondents be condemned to pay costs of this application.e.Any other remedies or reliefs that this Honourable Court may deem fit in the circumstances.
2. The application is premised on the grounds on the face of the application and the supporting affidavit of the applicant. She contends that although she is the lawful owner of the suit property, the defendants invaded the land on 18. 12. 2023 and began to demolish her fence and they started depositing building materials. She fears that her house could be demolished.
3. The application was served but no responses were filed.
4. I find that the plaintiff has availed her certificate of the lease to the suit land, thus she has established a prima facie case as set out in Giella v Cassman Brown (1973) EA and reiterated in several case laws including Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR.
5. The court need not interrogate the other criteria seeing that the application is unopposed. Thus the application dated 19. 12. 2023 is allowed as drawn, but the restraining orders shall remain in force for a period of one year only.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24THDAY OF APRIL, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/s Ngori for PlaintiffCourt assistant: Eddel